| People v Mills |
| 2017 NY Slip Op 00349 [146 AD3d 1173] |
| January 19, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTimothy A. Mills, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (Marquetta Christy of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered May 11, 2015, convicting defendant upon his plea of guilty ofthe crime of rape in the first degree.
In March 2015, defendant waived indictment and agreed to be prosecuted pursuantto a superior court information charging him with one count of rape in the second degree.The charge stemmed from an incident that occurred in May 2014, at which timedefendant engaged in sexual intercourse with a 14-year-old female relative. Pursuant to anegotiated plea agreement, defendant executed a written waiver of the right to appeal andagreed to plead guilty to rape in the second degree in exchange for a sentence of sixmonths in the local jail and 10 years of probation. During the course of the plea colloquy,defendant was advised to cooperate with the Probation Department and was warned thatif he "fail[ed] to abide by the jail rules" while he was awaiting sentencing, County Courtwould not be bound by its sentencing commitment.
During his presentencing interview with the Probation Department, defendant"adamantly denied any sexual contact with the victim"—claiming that he sufferedfrom erectile dysfunction and characterizing the victim as "vindictive." Upon reviewingdefendant's statements to the Probation Department, which directly contradicted hissworn plea allocution, County Court indicated that it no longer could honor its priorsentencing commitment. Following a bench conference, defendant was advised that hecould reallocute to the charged [*2]crime under oath, inwhich case County Court would sentence him to four years in prison followed by eightyears of postrelease supervision, or he could move to withdraw his plea, which CountyCourt indicated it was "prepared to let him do." In conjunction therewith, County Courtalerted defendant to the "possibility" that, if he elected to withdraw his plea, the Peoplecould re-present the charges and advised defendant as to both the potential charges thatthe People could seek and his sentencing exposure relative thereto. After being affordedan opportunity to discuss his options with counsel, defendant again pleaded guilty(without reference to his previously executed waiver of the right to appeal) to rape in thesecond degree and was sentenced to four years in prison followed by eight years ofpostrelease supervision. Defendant now appeals, contending that County Court'scomments regarding the possibility of additional charges and defendant's potentialsentencing exposure constituted coercion.
Absent an appropriate postallocution motion, defendant's challenge to thevoluntariness of his plea is unpreserved for our review (see People v Lobaton, 140AD3d 1534, 1535 [2016], lv denied 28 NY3d 972 [2016]; People v White, 139 AD3d1260, 1260 [2016]). Further, given that defendant was expressly afforded anopportunity to withdraw his plea, we are not persuaded that this is one of those rare caseswhere a "defendant had no practical ability to assert that the plea was invalid prior to theimposition of sentence" (Peoplev Williams, 27 NY3d 212, 220 [2016]). Hence, we discern no exception to thepreservation requirement. That said, even assuming that defendant's challenge to thevoluntariness of his plea was properly before us, we would find it to be lacking in merit.Simply put, neither the possibility that the People might pursue additional charges againstdefendant, County Court's ensuing explanation as to the potential nature of those chargesand defendant's possible sentencing exposure relative thereto nor the short period of timewithin which defendant was required to accept or reject the plea offer "constitutedcoercion to induce defendant's guilty plea" (People v Goodell, 104 AD3d 1026, 1026 [2013], lvdenied 22 NY3d 1138 [2014]; see People v Lobaton, 140 AD3d at 1535; People v O'Neill, 116 AD3d1240, 1241 [2014]; Peoplev Wolf, 88 AD3d 1266, 1267 [2011], lv denied 18 NY3d 863 [2011]).At best, the pressure to which defendant now claims he was subjected "amounts to thetype of situational coercion faced by many defendants [who are] offered a plea deal,"which, in turn, would be insufficient to undermine the voluntariness of defendant's plea(People v Taylor, 135 AD3d1237, 1237 [2016] [internal quotation marks and citations omitted], lvdenied 27 NY3d 1075 [2016]). Accordingly, County Court's judgment isaffirmed.
McCarthy, J.P., Lynch, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.